For Him The Bell Tolls

Proving he's no softie, ice cream vendor Jeffery Cabaniss is prepared to fight an ordinance forbidding him to play his signature song through the streets of Stafford.         Cabaniss said he will consider seeking a federal court injunction to prevent Mayor Carl W. Block and the Township Council from enforcing the controversial noise ordinance that has attracted international media attention.         The ordinance prohibits Cabaniss and other vendors from using amplified mechanical or electronic sounds to attract business. Instead, Stafford vendors may use only hand bells or bells operated by human hands.         After the ordinance was adopted March 3 in a 4-2 vote by the council, Cabaniss, whose mechanical version of "The Turkey in the Straw" identifies him as the lone soft-serve ice cream vendor in town, said he would be forced to take his business elsewhere. That was before he consulted with Stafford attorney Gilbert Farr, who informed him of his right to free speech, he said.         "I was naive to what approach I could take next," Cabaniss said. "I didn't know I had recourse."         Farr told Cabaniss that although government can regulate noise, it neither can restrict nor prohibit how an individual identifies his business.         "It's like telling McDonald's they can't use golden arches," Cabaniss said. "It's a blatant trampling of my First Amendment rights and unconstitutional."         Before moving forward with a lawsuit, Cabaniss is hoping the council will "succumb to the media outcry" and rescind the ordinance.         He is in the process of forming a concerned citizens group that will keep the issue alive through press releases, letters to editors and interviews on radio and television stations.         The group, Manahawkin United in Support of Ice Cream (MUSIC), is designed to "point out that this is not the solution the community wants," Cabaniss said.         Block reiterated he still would be open to amending the general noise ordinance to keep the excessive sound levels within 10 feet of the vendor's vehicle providing the state Department of Environmental Protection will certify the cross-referencing change to the vending ordinance.         However, the mayor said he would not bow to media pressure if the existing ordinance cannot be amended. "Not at all," he said.         As far as Cabaniss' assertion that the ordinance violates his First Amendment rights, Block said it does not prohibit commerce but places a reasonable restriction on the amount of noise generated by vending trucks.         "I don't think that's implicit or implied in the First Amendment," he said.         Despite their differences of opinion, both Block and Cabaniss said they were overwhelmed by the media's extensive coverage of the issue.         After the story was picked up by the Associated Press, Cabaniss said he was deluged by phone calls from television and radio stations across the country. In addition to two articles in the New York Times and a featured spot that was broadcast nationally on CNN, Cabaniss has been interviewed by eight television stations and more than a dozen radio stations in Chicago, St. Louis, Atlanta, Canada and Australia.         Cabaniss was informed that the issue was mentioned by television hosts Barbara Walters and Rosie O'Donnell on their nationally broadcast TV programs.         "I don't understand the media frenzy when there are many other problems we need to face and solve," Block said.         Cabaniss believes the "frenzy" centers on the issues of tradition and child safety that were brought out by the public. While he agrees with those issues, the veteran seven-year vendor said that because the council majority has turned a deaf ear to the concerns, legal action may prove to be the winning recourse.         If the case goes to federal court, Cabaniss said he also will take action against Long Beach Township, which passed a similar ordinance in December.         Cabaniss protested the ordinance prior to its adoption in Long Beach but said that township has a unique problem that cannot be compared to the situation in Stafford.         "In LBT, you have 16 vendors in two square miles," he said. "There they have a problem."         Nevertheless, Cabaniss said he feels compelled to stand behind his constitutional rights "in defense of vendors nationwide."         "I don't want to be known as the ice cream vendor that started the trend," he said. "If I can put an end to it now, I can put a stop to the precedent before it starts."

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